When a person overdoses, the fear of police involvement can be a fatal barrier to calling 9-1-1. To combat this, Parliament enacted the Good Samaritan Drug Overdose Act, which provides immunity from being “charged or convicted” for simple drug possession by adding section 4.1 to the Controlled Drugs and Substances Act (CDSA).
But what does this immunity really mean? Does it stop police from just charging you, or does it also stop them from arresting you, searching you, and then charging you with other offences they might find?
This was the critical question recently answered by the Supreme Court of Canada in a landmark 6-3 decision. The Court’s ruling significantly strengthens the protections for individuals who call for help at an overdose scene, confirming that the immunity prevents not only charges but also the arrest itself. This decision has profound implications for the rights of all individuals in Ontario who find themselves in this life-or-death situation.
The Factual Background: A 9-1-1 Call That Led to Firearms Charges
The case, R. v. Wilson, began in Saskatchewan in 2020. Mr. Paul Wilson was in a truck with three other people near an elementary school when one of his companions, Ms. Delorme, began to overdose after using fentanyl. A 9-1-1 call was made for emergency help.
When the first police officer arrived, EMS was already on the scene, treating Ms. Delorme. The officer observed Mr. Wilson and another man under the truck, apparently trying to fix it. The officer also smelled marijuana and saw a small bag of a white substance on the ground. She noted that the individuals, including Mr. Wilson, showed signs of drug impairment.
The officer detained Mr. Wilson and the others to investigate them for possession of a controlled substance. During this detention, she saw Mr. Wilson fiddling with his pocket and then noticed a new streak of white powder on the ground near his feet. When questioned, Mr. Wilson produced a case with syringes.
At this point, the officer arrested Mr. Wilson and the others for simple possession of a controlled substance.
Following this arrest, two other officers who had arrived on the scene conducted a “search incident to arrest.” This search power allows police to search a person and their immediate surroundings (including the truck) after a lawful arrest. During this search of the vehicle, officers found drugs, paraphernalia, modified handguns, firearm parts, and ammunition inside a backpack.
Only after this search were Mr. Wilson and the others re-arrested for more serious offences, including possession for the purpose of trafficking and various firearms offences. At the police station, Mr. Wilson admitted that the backpack containing the guns was his.
Importantly, in accordance with the Good Samaritan Drug Overdose Act, Mr. Wilson was never charged with the simple possession offence that triggered his initial arrest. However, he was charged with multiple serious firearms offences and possession of identity documents.
The Legal Journey: A Split Between the Lower Courts
At his trial, Mr. Wilson argued that all the evidence (the guns, ammunition, etc.) should be thrown out. His argument was based on a chain of logic:
- The Good Samaritan Act made it illegal for police to charge him with simple possession.
- Under the Criminal Code, the only lawful purpose of an arrest is to bring someone before the court to be charged.
- Since a charge was prohibited, the arrest for simple possession was unlawful and arbitrary, violating his section 9 Charter right to be free from arbitrary detention.
- Because the arrest was unlawful, the “search incident to arrest” was also unlawful, violating his section 8 Charter right to be free from unreasonable search and seizure.
- Under section 24(2) of the Charter, evidence obtained from a serious Charter breach should be excluded from the trial.
The trial judge disagreed. He found the officers’ actions to be reasonable, particularly in terms of officer safety, and allowed the evidence to be used. Mr. Wilson was convicted and sentenced to eight years in prison.
The Saskatchewan Court of Appeal unanimously overturned the trial judge’s decision. They agreed entirely with Mr. Wilson’s logic. The court held that the only reason for the arrest was simple possession, an offence for which Mr. Wilson was immune from charges. Therefore, the arrest was unlawful, the search was unlawful, and the evidence had to be excluded. The Court of Appeal quashed his convictions and entered acquittals.
The Supreme Court of Canada’s Majority Decision: The Arrest Was Unlawful
The Crown appealed to the Supreme Court of Canada, arguing that the police should be allowed to arrest for simple possession, even if they can’t lay a charge. They argued this power was necessary for public safety—to seize dangerous drugs, prevent impaired driving, or investigate other potential crimes.
A 6-3 majority of the Supreme Court rejected the Crown’s arguments and dismissed the appeal, confirming Mr. Wilson’s acquittals.
The Purpose of the Law is to Save Lives
The majority’s reasoning focused on the clear and urgent purpose of the Good Samaritan Drug Overdose Act: to save lives.
Parliament recognized that people were dying because witnesses, often fellow drug users, were terrified to call 9-1-1. The “strongest disincentive” to calling for help is not just the fear of a future charge, but the immediate and terrifying prospect of being arrested at the scene.
An arrest is not a minor inconvenience. It is a profound deprivation of liberty that can lead to being handcuffed, taken to a police station, and, most importantly, subjected to a broad and intrusive search. The majority reasoned that if people believed they could still be arrested and searched—potentially leading to other charges, as it had for Mr. Wilson—they would simply not call for help. The life-saving purpose of the Act would be defeated.
“No Charge” Must Also Mean “No Arrest”
The majority found that immunity from arrest is “necessarily implied” by the immunity from being “charged or convicted.”
The Court explained that the power to arrest is not an independent police power to be used for any purpose. It is fundamentally tied to the criminal justice process, which starts with a charge. If the endpoint (a charge) is legally prohibited, then the starting point (an arrest for that same offence) must also be prohibited.
Police Cannot Use an “Unchargeable” Offence as a Pretext
This was the majority’s most powerful point. If the Crown’s argument was accepted, it would hand police a new and troubling power: the ability to use a minor, unchargeable offence as a “pretext” to conduct a “fishing expedition” for other, more serious crimes.
Police would be able to arrest someone for simple possession—knowing full well they could never charge them for it—for the sole purpose of unlocking the powerful “search incident to arrest” power. The majority found this would be an unlawful expansion of police powers and contrary to the principles of Canadian law, which has never permitted arrests purely for investigative purposes.
The Court concluded that Mr. Wilson’s section 9 (arbitrary detention) and section 8 (unreasonable search) rights were clearly violated. The police should have known that the Good Samaritan Act prevented them from arresting him for simple possession. This serious breach of his rights meant the evidence had to be excluded under section 24(2), as its admission would bring the administration of justice into disrepute.
What Can Police Still Do at an Overdose Scene?
The Supreme Court was careful to point out that this decision does not leave police powerless or create a “crime-free zone” around an overdose. Police still have many lawful powers to ensure public and officer safety.
The majority confirmed police can still:
- Secure the scene and ask questions to assist with medical treatment or to investigate the source of tainted drugs.
- Seize any illegal items (drugs, weapons, etc.) that are in “plain view.”
- Detain individuals if it is “reasonably necessary” in the totality of the circumstances to prevent a serious, imminent risk to public or officer safety.
- Conduct safety searches (pat-downs) if they have reasonable grounds to believe their safety or the safety of the public is in imminent danger.
- Arrest an individual for other offences (e.g., drug trafficking, weapons possession, impaired driving) IF they have reasonable grounds to believe that other specific crime is being committed, before they conduct a search.
The key difference is that police can no longer use the simple possession itself as the legal gateway to arrest and search someone who has remained at an overdose scene.
The Dissenting Opinion: A Focus on Text and Public Safety
Three of the nine judges disagreed strongly, arguing that the convictions should be restored.
The dissent’s reasoning was rooted in a strict, textual reading of the law. They argued that Parliament only provided immunity from being “charged or convicted.” It specifically and deliberately did not include the word “arrested.” The dissent argued that courts should not add words to a statute that Parliament chose to leave out.
The dissenting judges also focused on the dual purpose of drug laws: not just public health, but also public safety. They argued that allowing police to arrest (but not charge) for possession serves this public safety goal. It allows police to:
- Interrupt an ongoing crime (possession).
- Seize and remove dangerous substances like fentanyl from the community.
- Protect the public from other risks (like the impaired individuals driving away).
- Investigate the scene (which was, in this case, an elementary schoolyard).
The dissent warned that the majority’s decision could have “absurd consequences.” They argued that if police cannot arrest for simple possession, it logically follows that they cannot even investigatively detain someone for it, leaving them with no power to control a potentially dangerous and active crime scene. The dissent pointed to the bill’s sponsor, who had told a Senate committee the law would “not limit police powers,” a statement the dissent felt the majority’s ruling directly contradicted.
Implications of R v. Wilson
Despite the strong dissent, the majority’s decision is now the law in Canada.
This case, R. v. Wilson, represents a major victory for Charter rights and the public health approach to the drug crisis. The Supreme Court has affirmed that the Good Samaritan Drug Overdose Act is not a technical legal shield, but a robust and practical protection designed to save lives.
The key takeaway is clear: If you are at the scene of an overdose and call 9-1-1 or remain to help, police cannot lawfully arrest you for simple possession of drugs.
Furthermore, they cannot use that simple possession as an excuse or pretext to search you, your belongings, or your vehicle in the hopes of finding evidence of other crimes. Any evidence found in such a search would be the product of an unlawful arrest and a breach of your Charter rights, and a strong argument could be made to have it excluded from court.
This ruling clarifies that Parliament’s intention was to have you make the call to save a life, without fearing that this good deed will result in your own arrest.
Experienced Toronto Criminal Defence Lawyers Helping You Protect Your Charter Rights
This landmark decision confirms that the Good Samaritan Drug Overdose Act provides a robust shield: police cannot use simple drug possession as a pretext to arrest or search you at an overdose scene. This is a profound strengthening of Charter rights, but navigating the complexities of police power and evidence exclusion requires experienced legal counsel. If your rights were violated or you face charges following a police interaction in Ontario, contact Hicks Adams for a Free Criminal Defence Consultation. Our experienced lawyers are ready to defend your rights in Toronto or anywhere in Ontario. Call us today at 416-975-1700 or visit us online.
